Affidavit No 3

ROBERT KAP #3 August 29, 2009 FORM 60 (RULE 51 (2) AND (6)) No. S004040 VANCOUVER REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: TRACY KAPOUSTIN, NICHOLAS KAPOUSTIN BY HIS GUARDIAN AD LITEM TRACY KAPOUSTIN AND MICHAEL KAPOUSTIN PLAINTIFFS AND: THE HONOURABLE MURAVEI RADEV MINISTER OF FINANCE IN HIS OFFICIAL CAPACITY FOR REPUBLIC OF BULGARIA, DEFENDANT and STEFCHO GEORGIEV, MARIO STOYANOV, EMILIA MITKOVA, KINA DIMITROVA, IVETA ANADOLSKA, DIMITAR SHACKLE and DEREK A. DOORNBOS, INDIVIDUAL DEFENDANTS AND: MINISTRY OF JUSTICE REPUBLIC OF BULGARIA RESPONDENT

AFFIDAVIT I, Robert Kap, resident of 333 Tonti Street, South Bend, Indiana, 46617 United States of America, in support of my application to this Honorable Court for an Order and as such DO MAKE OATH AND SAY AS FOLLOWS, THAT: 1.

I have made application for myself and my wife Tatiana for an Order to appoint as our legal representative before this Honorable Court our natural son, Michael 1

Kapoustin, (“Kapoustin”) a plaintiff in the above-entitled proceeding. We require the Order command he be conducted by Defendant, the Republic of Bulgaria (“Bulgaria”) before this Honorable Court to give evidence and argument on our behalf at any hearing, the time and date to be set. 2.

This affidavit is on behalf of myself and my wife, Tatiana Kap who is unable to give evidence due to her physical disability

3.

My application is further made on behalf of my natural grandson, Nicholas Kapoustin and his mother and guardian Ad Litem Tracy Kapoustin, Plaintiffs in the above-entitled proceeding.

4.

Due to the age and physical disabilities of my grandson and the legal disability of his mother Tracy they are unable to give evidence at this time.

5.

I do verily believe, after consultations with medical experts and others that my wife, Tatiana, and my grandson Nicholas have in point of fact suffered or seen their present physical disabilities worsened by the personal suffering and injuries caused them vicariously or directly as a result of the tortious and unlawful acts of the Defendant Bulgaria and those others named.

6.

The nature and cause of their personal injuries gives rise to the application made and relief sought from the court.

7.

I and my wife, and my son, his wife and son have each suffered, jointly or severally as a direct or vicarious result of the Defendant Bulgaria, loss of our property and money in the province of British Columbia (“Province”) and elsewhere as connected to us in the Province.

8.

We have suffered such losses due to the commercial activities offered to us and as concluded with us by the Defendant Bulgaria. Whose documented written and oral representations by its officials, agencies, instrumentalities, departments or political subdivisions induced us to advance money, goods and provide investments to Bulgaria.

9.

The written and oral contracts or representations made by the Defendant Bulgaria having all been breached by it without adequate cause in fact or law.

10.

It is the nature and cause of those breaches or misrepresentation that have resulted in the property and other losses or damages claimed and giving rise to the complaint made and relief sought.

11.

My son, Plaintiff Kapoustin, is a Canadian citizen who has been under pretrial arrest since 7 February, 1996 awaiting trial and verdict in a penitentiary facility of the Defendant Bulgaria. This sentence is imposed without benefit of due process recognized by international law. The Defendant Bulgaria maintains his custody.

12.

Prior to the above-entitled proceeding being filed by the Plaintiffs I had personally claimed injuries and damages against the Defendant Bulgaria. 2

13.

On or about November 1997 I brought a Statement of Claim before the Supreme Court of British Columbia (“SCBC”).

14.

The complaint brought by me sought relief jointly or severally from the Defendant Bulgaria and the Federal Republic of Germany. It can be found under SCBC, Vancouver Registry Case File C974299.

15.

To date I have been unable to pursue my complaint against the Defendant Bulgaria as a direct result of the personal injury and suffering caused my wife Tatiana by the said Defendant. Her health having rapidly deteriorated and the property and financial losses suffered by us as a result of Defendant Bulgaria denied me the time and financial resources to pursue the matter further.

16.

That I have since forwarded, at the recommendation of my son the Plaintiff Kapoustin, under separate cover to this Honorable Court a motion requesting consolidation of my complaint with that of those of my son and his wife and son in the above-entitled proceeding. Having been advised to rely on subrule 5(8) Rules of the Court.

17.

As a result of the aforesaid as deposed herein, I do verily believe myself and my wife, Tatiana, to be legitimate parties of interest to this proceeding.

18.

In our having a legal interest in the outcome of any hearing in this proceeding we request that this Honorable Court provide the Order requested by us as setout § above and in the motion attached. The Honorable Court permitting the Plaintiff Kapoustin to represent our interests and those of the other Plaintiffs. Our request is for the following reasons.

19.

Upon my best information and belief I and my wife, as parties of interest in the above-entitled proceeding, are entitled by provisions of the Charter and Rules of the Court to demand the Defendant Bulgaria produce, at any hearing or trial, the Plaintiff Kapoustin to provide evidence and represent our interests and those of other Plaintiffs.

20.

My principal rationale for our requirements to this Honorable Court and our demands to the Defendant Bulgaria are in response to a Notice of Motion and request for a hearing as brought under this Rule by the Defendant Bulgaria and served, upon my best information, on March 13th 2001 to the Plaintiff Kapoustin.

21.

The Defendant Bulgaria has requested from this Honorable Court relief in the province or Canada from, generally any civil complaints or alternatively such other complaints as have been or may be brought and conducted in the nature of criminal proceedings in the province against the Defendant Bulgaria.

22.

In its Outline under Rule 65, Rules of the Court, the Defendant Bulgaria relied on a third party affidavit of Ms. Maya Dobreva. The contents of which are I know to be unrelated to the complaints setout in the Statement of Claim brought by the Plaintiffs. 3

23.

I know and do verily believe veracity and completeness of Ms. Maya Dobreva’s sworn statement is questionable at best.

24.

Putting it gently, Ms. Dobreva has grossly misrepresented and oversimplified the complex factual matrix of this proceedings cause of action. She has omitted substantive facts, whose nature and particulars are sufficient and necessary to establish the controversy of fact and issues of law to be for trial in the province.

25.

It is unclear what the relationship there is, if any exits, of the deponent Ms. Dobreva, to the Plaintiffs.

26.

The evidence of Ms. Dobreva is incongruous and irrelevant to this proceedings cause of action.

27.

It is unclear why Ms. Dobreva was permitted to submit evidence on affidavit when having no knowledge of the facts. But what is adequately clear is that Defendant Bulgaria, seeks to rely on her evidence and ss. 3(1) of the State Immunity Act, R.S.C. 1985 c. S-18, the “Act.”

28.

To put it gingerly Defendant Bulgaria, is sufficiently brazen to ask this Honorable court to deny or abandon its natural jurisdiction in a case of property loss and personal injury in the province. The Defendant Bulgaria further contemplating to have its state immunity extended to actions brought in Canadian courts that are in personam or in rem.

29.

The Plaintiff Kapoustin, on behalf of himself and other Respondents to Defendant Bulgaria, did not consent to the relief requested. Having relied on alternative provisions of the Act as found in ss. 4(1)(2)(a), S. 5, S. 6, S. 7, S. 17 and S. 18.

30.

I do verily believe, that the facts of this case will nonetheless show that after this Honorable Court having given due consideration to the principle of de jure imperii and applicable enactments of Canada, it should find this principle, as relied on by Defendant Bulgaria is in the above-entitled instance, is one which is in this case inoperable.

31.

This becomes apparent to be after my having read the February 23rd 2001 sworn statement of Ms. Dobreva and my reading the March 16th 2001 affidavit No. 1 of Attorney Anatol Lukanov.

32.

It is apparent that Ms. Dobreva, in order to support the Defendant Bulgaria in its application under this Rule has misrepresented the Plaintiffs cause of action in an effort to gain the relief sought.

33.

The misrepresentations or omissions or errors of Ms. Dobreva are conspicuous in that the Defendant Bulgaria has been aware, since on or about January 1998, of those claims as previously made by me in SCBC Case No. C974299 [see § above]. Defendant Bulgaria having maintained at all times physical possession or control over the documents and assets material to my separate claim. 4

34.

The Defendant Bulgaria continues to control all original corporate or personal documents and assets, including the liberty of the key person and witness to the causes of action for the claims made and relief sought by the Applicants and other Plaintiffs.

35.

The Defendant Bulgaria and others, despite repeated written demands have repeatedly refused to produce particulars of assets or documents held by it or other facts relevant to this proceeding. Or to take such actions under law as consistent with such requests.

36.

This convincingly suggests that Ms. Dobreva, has or had available to her the particulars of assets, contracts or documents. But knowingly made misrepresentations, omissions or errors effectively excluding these facts for the same reasons flowing from similar conduct of other officials of the Defendant Bulgaria.

37.

Certain of the complaints made against the Defendant Bulgaria and others are in the nature of fraudulent representation and documents as made by officials of the said Defendant.

38.

The veracity of Ms. Dobreva’s exegesis, as a result of the foregoing, is in question. Making a full disclosure of the material facts and circumstances and attendance of all litigants necessary before this Honorable Court. The fullness of the facts to be secured through an appropriate discovery in Chambers of the Plaintiff Kapoustin and other such witnesses as may be caused to appear.

39.

I do verily believe Ms. Dobreva has concealed the material facts known to her so that she might aid the Defendant Bulgaria in obscuring the commercial activities of its officials, agencies or instrumentalities. This includes its political subdivisions that had acted behind a pretense of government action.

40.

I do verily believe, upon best information that Ms. Dobreva and others have misrepresented the facts and their nature in the hope to avoid a trial process in the Province or Canada that will prove personally embarrassing for certain government officials and costly for the Defendant Bulgaria.

41.

Upon my best information and belief the Defendant Bulgaria seeks to divert this Honorable Court from the substantive facts and issues of the loss of property and personal injury as suffered.

42.

The facts if setout fully will conclusively show that the damages or injury caused has resulted from contract breaches, fraudulent representations or tortious acts of the Defendant Bulgaria and not, as wrongly claimed by Ms. Dobreva the pending criminal proceeding of the Plaintiff Kapoustin in the Republic of Bulgaria.

43.

I do further believe that Ms. Dobreva’s misrepresentations, errors or omissions are undertaken so as to rely on the principle of state immunity only to shelter the Defendant Bulgaria and certain of its officials from their inherent civil or criminal liability in the Province. 5

44.

As a result Ms. Dobreva and Defendant Bulgaria have made it difficult for others to draw a coherent distinction between the facts as they are and her statements of opinion asserted by her as if fact.

45.

It is only through discovery and a hearing of all the facts that it will become readily and clearly apparent to this Honorable Court that the claims of State immunity are manifestly ill founded. Ms. Dobreva and others, I do verily believe, seek only to deny or alternatively to refuse this Honorable Court its lawful possibility and right to consider vital questions of fact and law that require conducting a full investigation of the factual matrix out of which the Plaintiffs’ claims arise.

46.

What is apparent from the facts and documents available to me, and my personal knowledge is the objective of the Defendant Bulgaria. From 1991 up to and including early 1995 said Defendant sought to induce the Plaintiffs and other foreign nationals to provide their financial resources, and other assets, including property located in the province or elsewhere. The Plaintiffs required to place in trust and subject to the control or oversight of officials, an agency or instrumentality of the Defendant Bulgaria.

47.

I do further believe Ms. Dobreva has under oath, as an official on behalf of the defendant foreign State, made knowingly misleading statements, materially false representations and substantial omissions of facts in paragraphs 1, 3, 4, and 5 of her sworn statement.

48.

Among the facts under this proceeding Ms. Dobreva fails to consider are that on January 11th, 2001, relying on the provisions of subrule 31(1) Rules of the Court and on behalf of the Plaintiffs, I did serve the Defendant Bulgaria with a Notice to Admit in Form 23 requiring it to admit or deny the following:

49.

48.1.

That the Statement of Claim had been provided to it on September 7th 2000.

48.2.

That an answer and response to the complaint was made by the Deputy Minister of Justice Z. Rousseva as RESPONDENT for the defendant foreign State.

48.3.

That the Defendant Bulgaria had voluntarily waived any defense of sovereign immunity in the above entitled proceeding. In so doing the agreeing to submit to the jurisdiction of a provincial court of British Columbia and to proceed only on the merits of those contracts or facts in dispute and the personal injuries claimed.

48.4.

That it admit Exhibits as attached which where the statement of defense in Bulgarian and English transcripts as filed with the courts Registrar.

The above-entitled action contains reasonable claims that are neither scandalous, frivolous nor vexatious, it is not otherwise an abuse of the process of this Honorable Court..

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50.

In conclusion I believe that my Charter rights and those of my wife as co-applicant will be infringed if the relief I seek for myself and my wife, with the other Plaintiffs is not granted by the Court.

51.

Upon my belief, should the Court not grant the relief requested, and Michael Kapoustin, pro se Plaintiff, is not permitted or otherwise unable to exercise his rights under the Charter and international treaties to appear, then I and the Plaintiffs of record or other parties of interest shall be at a legal disability.

52.

The facts to be established provide sufficiently novel issues and difficult questions as to cause me to believe that there is an issue fit to be tried by this Honorable Court and the testimony of Plaintiff Kapoustin necessary.

53.

This Application has been brought on by the physical or legal disabilities of the Applicants and Plaintiffs of record who seek to be represented and evidence to be presented at hearing or trial.

54.

The details of material contracts, the particulars of debt, expenses or damages, property loss and personal injury and other facts and matters on which the claims of Plaintiffs rely are factually complex. At present the foregoing is primarily familiar, in its full matrix, to the Plaintiff Kapoustin and can only be fairly and fully represented by him to the Court. A fact known to the Defendant Bulgaria.

55.

It is due to our indigence that I and the Plaintiffs are able to retain an attorney and must rely on the appearance and testimony pro se of the Plaintiff Kapoustin..

56.

The age and medical requirements of Plaintiff, the minor Nicholas Kapoustin, and the emotional anxiety and distress of Plaintiff Tracy Kapoustin are disabilities that make their appearance, pro se, at the hearing required by Defendant Bulgaria, Republic of Bulgaria medically inadvisable and potentially injurious to their physical and emotional state.

57.

My age and medical requirements of my wife, the emotional anxiety and distress experienced by us are disabilities which make our appearance, medically inadvisable and potentially injurious to our physical health and emotional state.

58.

Defendant Bulgaria has at all material times known of my and the Plaintiffs' reliance on Plaintiff Kapoustin as their representative and the key witness in the above-entitled proceeding.

59.

The Defendant Bulgaria, in knowing the foregoing and to gain the relief it seeks, chooses to rely on its custody of the Plaintiff Kapoustin and the ill health and poverty of his family to gain by default the relief sought.

60.

Upon my best information and belief the Defendant Bulgaria is and will continue to hinder or obstruct the Plaintiff Kapoustin from attending hearings or providing evidence against the Defendant Bulgaria.

61.

My grandson, Plaintiff Nicholas Kapoustin by his guardian Ad Litem, Tracy Kapoustin and my son's wife, Tracy Kapoustin, are unable, on account of my 7

grandson's diabetic condition and their personal poverty, to retain legal counsel or to undertake those acts required by my son as pro se Plaintiff before the Court;

SWORN BEFORE

Date April 17th 2001

_________________________ Applicant Robert Kap

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